Public records costing a few dollars elsewhere cost $200,000 in Cuyahoga County

Lonnie Timmons III, The Plain DealerMore than a dozen Ohio counties charge pocket change for CDs loaded with deeds, mortgages and other property-related documents. Not Cuyahoga County, though: Officials here want to charge more than $200,000 for comparable CDs and have so far spent $18,000 in tax dollars on lawyers to defend their contrary position.

CLEVELAND, Ohio -- More than a dozen Ohio counties charge pocket change for CDs loaded with deeds, mortgages and other property-related documents.

Recorders in those counties consider the documents, collected and stored at taxpayer expense, subject to the state's public records law, which mandates that copies be provided to citizens at cost.

But not Cuyahoga County. Officials here want to charge more than $200,000 for comparable CDs and have so far spent $18,000 in tax dollars on lawyers to defend their contrary position.

"The Cuyahoga County recorder's office is gouging everybody," said David Marburger, a lawyer and public records expert who contends in a lawsuit that the county's legal interpretation is wrong.

The Plain Dealer took a look at the dispute this week as part of its coverage of Sunshine Week, a journalist-led initiative to promote open government and keeping government records available to the public.

The dispute began last April, when then-county Recorder Lillian Greene first took the position that documents kept by her office are not public records as defined by the state's public records law.

Greene cited a different law that provides for recorders to charge $2 per page to photocopy or fax documents, with half of the money going to the county and half to a state housing trust fund.

Based on that provision, Greene abandoned the practice of charging companies that compile property data a flat fee of $50 for documents scanned onto CDs and instead imposed the $2-per-page charge for photocopying.

The title companies sought CDs containing 104,282 pages.

By Greene's reckoning, the companies would owe $208,564.

Her reasoning, and that of the lawyers hired by the county in December to defend lawsuits brought by the title companies, is this: a document scanned onto a CD is the equivalent of a photocopy.

"A copy is a copy is a copy," said the county's attorney, David Movius, who county commissioners in December agreed to pay up to $25,000 to defend the suit. "The General Assembly said recorded instruments are a special case that have a special fee."

Greene could not be reached for comment about the accusation, but her office did e-mail the companies weekly spreadsheets of property transactions for an annual fee of $7,500. She emailed the same listings to Case Western Reserve University, a nonprofit organization, at no charge.

The law governing photocopies makes no mention of CDs, said Marburger, who has co-authored a book on public records and has represented The Plain Dealer in disputes over records. As a result, he said, the public records law takes precedent.

His contention is buttressed by the flat fees that other Ohio recorders charge for property documents on CDs.

"All of our documents in the recorder's office are public record," said Erie County Recorder Barbara Sessler, who serves as president of the Ohio Recorder's Association. Her office charges $5 for documents on a CD.

Yet John Kandah, Greene's former chief of staff, now a chief deputy in Cuyahoga County's fiscal office, testified during a deposition that he did not know deeds and mortgages are available to the public.

Said Kandah, who made $91,000 last year, "I've got to plead ignorant on that one."

Cuyahoga no longer has an elected recorder. Greene's position was eliminated under a charter government that took office in January and has pledged to restore transparency and respect for public records.

But her legal battle continues.

County Executive Ed FitzGerald said he feels compelled to continue defending the $2-per-page fee based on briefings from the county's lawyers.

"I am stuck with a legal opinion that tells me we would be in violation of state law if we didn't charge that amount," FitzGerald said. "My opinion on public records is in general that it should be related to the cost the government entity incurs. This may be different, according to our lawyers, because it's using it for a funding purpose for the state."

Marburger said the county's decision to continue pressing the case is an "outrageous waste of money," one that will stretch at least another six months.

At least one County Council member also questions the wisdom of fighting.

"This is like the public suing the public," said Republican Mike Gallagher. "We're the public entity, and the public wants something, and the public's saying no to the public. It doesn't sound right."